[MassHistPres] FW: GOV #119 v S.2053 -- it's even worse!

Mon May 21 12:52:50 EDT 2012

With input from Dennis De Witt, I have revised the letter I sent to my state
senator opposing GOV 119 to create a model letter, and I will be glad to
email a copy of it to anyone who wants it. Just email me and I'll send you a
Word document.

It is extremely important that all friends of historic preservation write to
their legislators and let them know they oppose these efforts - GOV 119,
S.2053 - to undermine protection of historic resources in the state.

Sara Wermiel

Construction historian

Jamaica Plain, MA

swermiel at verizon.net

From: masshistpres-bounces at cs.umb.edu
[mailto:masshistpres-bounces at cs.umb.edu] On Behalf Of Dennis De Witt
Sent: Sunday, May 20, 2012 10:52 PM
To: MHC MHC listserve
Subject: Re: [MassHistPres] GOV #119 v S.2053 -- it's even worse!
Importance: High

It is important to note the most important difference between this new
attack on Massachusetts' Historic Preservation protections through the MHC
and its recent predecessor s.2053.  

Under s.2053 the larger MHC "inventory" of historic properties would have
been stripped of protection but the smaller and arguably more important
State Register (including N.R and LHD properties) would still have been
protected.  

Under this new proposal it appears that ALL protection is likely to be lost
in virtually ALL cases.  MHC's consultative mitigation process would no
longer be initiated immediately and automatically.  Instead, perversely, it
could only be initiated by some other state agency, if one was involved and
chose to do so (it is unclear why it would) or by the proponent (which, by
definition, is so unlikely as to seem absurd).

This proposal has been quietly inserted without debate or meaningful notice
into the Senate budget as an "outside section" by Sen. Rodrigues of New
Bedford who also initiated s.2053, together with Sen. Kenneth Donnelly of
Arlington, co-chair of the joint Committee that held the public hearing on
S.2053.  This proposal is in the form of an "outside section" -- a sneaky
invention of the 1970s (which was supposed to have been eliminated by recent
reforms) that allows unrelated legislation to be buried in the budget at the
last minute and without notice.

It is very important to contact legislators and local government bodies
about this.  As just one example of the harm it could do, presently a 40B
project proposal can ride roughshod over just about every local legislation
-- except MHC's ability to comment to the state board that oversees the 40B
process and seek mitigation.  

This legislation would effectively silence MHC.

Dennis De Witt

Brookline

On May 18, 2012, at 6:56 PM, Steinitz, Michael (SEC) wrote:

The message is to alert you that Senator Kenneth Donnelly (Lincoln) and Sen.
Rodrigues (New Bedford) have filed a bill that is now attached to the Senate
version of the State FY13 Budget as GOV #119.  The Senate Budget bill is
moving quickly through the Senate.  It is important to contact your Senators
as soon as possible to voice your opposition to this bill.

This bill would have serious negative impacts on the Massachusetts
Historical Commission's ability to preserve historic properties,
archaeological sites and Native American burial sites by amending MHC's
State Register review statute in such a manner to make the MHC's
consultation process for adverse effect findings effectively meaningless.  

The proposed new changes in GOV #119 to MHC's Section 27C are highlighted in
the attachment.

Section 17A of the bill will put control of the MHC's consultation process
in the hands of project proponents.  Currently, the existing statute
requires that all parties immediately consult after the MHC makes an
"adverse effect" finding, in order to explore prudent and feasible
alternatives that would eliminate, minimize or mitigate the adverse effects.
Instead, the bill proposes give the proponent the opportunity to request
consultation with MHC.  The MHC would not be allowed to start the
consultation process unless the proponent requests it.

In addition, the proposed language would impose a 90-day limit on
consultation (but only if the proponent requests consultation).  The 90-day
limit would have negative impacts on the ability to explore feasible
alternatives, conduct feasibility studies, structural analysis and conduct
archaeological investigations, as well as curtail the ability to seek
comments from consulting and interested parties.  

The bill proposes that the MHC would only be able to make recommendations as
a result of the consultation.  The proposed language does not require that a
Memorandum of Agreement (MOA) be developed, just that the MHC issue
recommendations.  The proponent would be allowed to ignore MHC's
recommendations and not enter into a signed MOA to make a commitment to
stipulations that would eliminate, minimize of mitigate the adverse effects.

A new section (Section 17B) is also proposed which would put sensitive
records that are already exempt under the Public Records subject to
disclosure to any persons requesting the records, such as records pertaining
to Native American burial sites, personal information, etc.  Section 17B
ought not to pass.

Here is the full language of GOV 119. New language is in bold, underlined.
Deleted language is in italics, brackets.

GOV 119

Massachusetts Historical Commission

Messrs. Donnelly and Rodrigues moved that the bill be amended by inserting,
after section 17, the following sections: - 

"SECTION 17A. Section 27C of chapter 9 of the General Laws, as appearing in
the 2010 Official Edition, is hereby amended by striking out the first
paragraph and inserting in place thereof the following paragraph:- 

As early as possible in the planning process of a project undertaken by a
state body, or prior to a state body's funding or licensing, in whole or in
part, a private project, the state body undertaking, funding or licensing
such project shall notify the commission of such project and the commission
shall, within 30 days of receipt of such notice, determine whether such
project will have any adverse effect, direct or indirect, on any property
listed in the state register of historic places. If the commission does not
make a determination within 30 days, the state body or the proponent may
proceed with the project. Upon a determination of adverse effect, the
[commission, the] state agency and, in the case of a private project, the
project proponent shall [immediately consult] have 15 days to request the
commission's consultation to discuss ways to eliminate, minimize or mitigate
the adverse effects; provided, however, that such property was included in
the inventory of the historic assets of the commonwealth prior to the
thirtieth day following the submission of an application for building,
demolition, special permit or the submission of a plan under section 81O,
81P or 81S of chapter 41, or the application for the required state permits
for the project. Upon receiving a request for consultation, the commission
shall have 90 days to consult with the state agency, project proponent and
interested parties to develop recommendations to eliminate, minimize or
mitigate adverse effects of the project. At the end of this 90 day period,
consultation shall be deemed to be concluded. The state body undertaking the
project or the private entity proposing the project shall adopt all prudent
and feasible means to eliminate, minimize or mitigate the adverse effects,
provided that the commission has issued written recommendations for
elimination, minimization or mitigation of the adverse effects. If the
commission does not issue such recommendations in writing within 30 days
from the date consultation has concluded, the state agency or project
proponent may proceed with the project. The commission's review shall not be
limited to the subject matter of the license, but shall extend to the entire
project whether licensed or funded in whole or in part. The commission shall
have the authority to promulgate rules and regulations necessary to
implement this section. This section shall be interpreted and administered
so as to eliminate, minimize or mitigate adverse effects to properties
listed in the state register of historic places.

SECTION 17B. Said section 27C of said chapter 9, as so appearing, is hereby
further amended by adding the following paragraph:- 

A record related to any project that is subject to this section, except the
inventory of archeological sites and specimens maintained under clause (1)
of section 26A, including correspondence between the commission and any
state agency or project proponent, shall be a public record as defined by
section 7 of chapter 4.".

Michael Steinitz

Deputy State Historic Preservation Officer

Director, Preservation Planning Division

Massachusetts Historical Commission

220 Morrissey Boulevard

Boston, Massachusetts 02125

617-727-8470

617-727-5128 (fax)

michael.steinitz at state.ma.us

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